Frequently we see the case against gun control entirely grounded upon a Constitutional defense of the Second Amendment. While the Founding Fathers’ warnings about the importance of defending liberty with an armed populace are as important today as they have ever been, this approach has some flaws.
For one, the Constitution was not meant to grant positive rights to citizens but rather was intended to recognize the natural rights and restrict the ability of the federal government to limit them. The Founding Fathers did not believe that these rights could not be limited, however. Instead, they saw that legislation that restricted one’s natural rights should be handled by governments closer to the people themselves, including states and localities.
This is why the Bill of Rights was not intended to apply to state government.
Though many state constitutions shared similarities with the Bill of Rights, by 1820 only 9 of 22 states had language explicitly protecting the right to bear arms: Massachusetts (1780), Pennsylvania (1790), Kentucky (1792), Tennessee (1796), Ohio (1801), Indiana (1816), Mississippi (1817), Connecticut (1818), Alabama (1819), and Maine (1819). (The number was 18 of 33 by 1886.)
Of course that lack of state constitutional protection did not mean that states were necessarily hostile to gun rights – at least, for white citizens.
The same could not be said for “Indians,” “Free Negroes,” “Mulattos” and certainly not slaves.1
Prior to the passing of the 14th Amendment, eight states2 had gun control legislation that criminalized the possession of fire arms by non-white free citizens. Virginia required such individuals to receive government permission. Three additional states3 had constitutional language that specified that gun rights were reserved exclusively for white men.4
In order to maintain the horrific institution of slavery, the state had to disarm those most likely to empathize with its victims.
While the “peculiar institution” was ended as a result of the Civil War, racially motivated gun control laws were not.
While the 14th Amendment prevented states from explicitly mentioning race in legislation, state governments still managed to find ways to disarm black citizens.
As David Kopel and Joseph Greenlee have noted, these included laws that banned pistols that were not used by former Confederate officers, severe racial discrepancies in the penalty for unlawfully concealed carrying, as well as gun licensing requirements that, in the words of a future Florida Supreme Court Justice, were “passed for the purpose of disarming the negro laborers” and “was never intended to apply to the white population.”
The racial motivation behind gun control did not end in the 19th Century either.
One of the most obvious examples was California’s Mulford Act, signed in 1967 by Governor Ronald Reagan. The law was a direct response to the Black Panthers’ open-carry patrols of Oakland neighborhoods, and banned the carrying of loaded weapons. It is also worth noting that the NRA, who for all the attention given to them by the media has often promoted the growth of government restrictions on gun rights, actively supported the legislation.
Of course, the outcome of gun control policies continues to have a disproportionate effect on minority communities. Every government hurdle placed on legal gun ownership renders citizens more dependent upon the state for their own protection. As we have seen, not all police response is equal.
For example, in Chicago the ACLU has found that:
African American and Latino neighborhoods wait much longer for a police officer to be dispatched after an emergency 911 call, have fewer officers assigned to minority districts for each emergency call than predominantly white neighborhoods and that minority neighborhoods continue to have more violent crimes per officer than white neighborhoods.
Justice Clarence Thomas also noted the unique experience of black Americans in his opinion on McDonald v. Chicago.
The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “ ‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’ ”
So while it is easy for well-protected politicians, celebrities, and billionaires to champion the cause of gun control, it’s important to remember that the history of such legislation has come at the expense of those most vulnerable in society.
An unarmed populace is always easier to victimize than an armed one.
1. As Chris Calton informs me “the first colonial statute that specifically targeted black people (not just slaves, not Indians, and not white servants) was a Virginia law prohibiting gun ownership for blacks in 1639. ”
2. Delaware, Georgia, Indiana, Kentucky, Maryland, Mississippi, Missouri, and North Carolina
3. Arkansas, Florida, and Tennessee
4. Frassetto, Mark, Firearms and Weapons Legislation up to the Early 20th Century (January 15, 2013). Available at SSRN: https://ssrn.com/abstract=2200991 or http://dx.doi.org/10.2139/ssrn.2200991
(Courtesy of Mises Institute in Auburn)
